SUBCHAPTER 1L ‑ EQUAL OPPORTUNITY
SECTION .0100 ‑ EQUAL EMPLOYMENT OPPORTUNITY PLANS AND
PROGRAMS
25 NCAC 01L .0101 DUTIES OF SECTION
The Office of State Personnel shall develop
and administer a program to ensure that employees are provided with equal employment
opportunities at all occupational levels.
History Note: Authority G.S. 126‑4; 126‑16;
126-19;
Eff. October 1, 1977;
Amended Eff. December 2, 1995; November 1, 1987.
25 NCAC 01L .0102 PURPOSE
(a) Agencies and universities of the State of North
Carolina shall provide all current employees and applicants for state
employment with equal employment opportunities, without discrimination on the
basis of race, color, religion, national origin, sex, age, genetic information,
or disabling condition as defined by G.S. 168A or disability as defined by the
Americans With Disabilities Act, as amended. All personnel policies, practices
and programs shall be administered and implemented in a non-discriminatory
manner by all state agencies and universities.
(b) Each agency and university shall adopt and implement an
equal employment opportunity plan in order to:
(1) assure that all personnel policies and
practices relevant to total employment in state government will guarantee and
preserve equal employment opportunities for all applicants and employees; and
(2) assure diversity of the state's workforce at
all occupational levels.
History Note: Authority G.S. 95-28.1A; 126-4(10); 126-16;
126-19; P.L. 110-233; 122 Stat. 881;
Eff. October 1, 1977;
Amended Eff. May 1, 2012; December 2, 1995; November 1,
1987; October 1, 1984.
25 NCAC 01L .0103 PROGRAM IMPLEMENTATION: STATE LEVEL
(a) The Office of State Personnel shall
develop and implement a State Equal Employment Opportunity Plan to promote
equal employment opportunity to include, but not be limited to, a policy
statement and the following elements:
(1) recruitment,
(2) disciplinary processes,
(3) selection processes,
(4) hiring,
(5) promotion,
(6) training,
(7) compensation and benefits,
(8) performance appraisal,
(9) reduction‑in‑force,
(10) harassment prevention,
(11) evaluation mechanism,
(12) reporting mechanism,
(13) transfer or separation, and
(14) grievance procedures.
(b) The Office of State Personnel shall
provide:
(1) technical assistance,
training, oversight, monitoring, evaluation, and support programs to each state
agency and university.
(2) develop systems to review,
analyze and evaluate trends regarding all personnel policies affecting the
elements in the State EEO Plan.
History Note: Authority G.S. 126‑4(10); 126‑16;
126-19;
Eff. October 1, 1977;
Amended Eff. December 2, 1995; October 1, 1984.
25 ncac 01l .0104 PROGRAM IMPLEMENTATION: AGENCY AND
UNIVERSITY LEVEL
(a) Each state agency head and University Chancellor shall
develop and implement an agency or university equal employment opportunity
program and plan.
(b) Each state agency and university shall submit a plan by
March 1 of each year to the Office of State Personnel for review, technical
assistance and approval by the Director of State Personnel. The Plan and program
shall be approved if they comply with the requirements in this Rule.
(c) Each state agency's and university's equal employment
opportunity plan and program shall include the following elements:
(1) The State EEO policy and an EEO policy
statement applicable to the agency or university. The policy shall:
(A) commit the agency or university to equal employment opportunity;
(B) prohibit discrimination and provide equal employment
opportunity to applicants and employees without regard to race, color, national
origin, religion, creed, sex, age, the genetic information, or disability;
(C) list applicable laws, regulations and guidelines
pertaining to EEO compliance including Title VII of the Civil Rights Act of
1964, as amended; the Equal Pay Act of 1963; the Age Discrimination in
Employment Act of 1968, as amended; Executive Order 11246, as amended; the
Rehabilitation Act of 1973; the Civil Rights Restoration Act of 1988; the Americans
with Disabilities Act of 1990, as amended; the Civil Rights Act of 1991; Genetic
Information Nondiscrimination Act of 2008; G.S. 126-16; as amended; and other
state EEO and anti-discrimination laws or statutes;
(D) prohibit retaliatory actions against employees who
file a complaint or charge of employment discrimination, testify, assist or
participate in any manner in a hearing, proceeding or investigation of
employment discrimination;
(E) commit the agency or university to
non-discriminatory practices in recruitment, selection, hiring, promotion,
compensation, performance appraisal, disciplinary and grievance procedures,
separations, and reduction in force;
(F) describe provisions for providing reasonable
accommodation for persons with disabilities;
(G) prevent harassment, including sexual harassment;
(H) describe the accountability of agency head or
chancellor, managers, supervisors and others for EEO compliance;
(I) provide for monitoring and evaluating the plan and
program effectiveness; and
(J) include the signature of the agency head or the
chancellor and date;
(2) The assignment of responsibility and
accountability. The assignment of responsibility and accountability shall
describe the responsibilities of the following:
(A) The agency head's or the university chancellor's
responsibilities shall include:
(i) the appointing or designating of a
management-level official responsible to oversee the EEO program;
(ii) communication of agency or university
commitment to EEO policies, plans, and procedures to all employees, applicants
and the general public;
(iii) providing necessary resources to ensure the
successful implementation of the EEO program; and
(iv) ensuring the development and implementation of
policies, procedures, and programs necessary to achieve a workforce in each
occupational category that reflects the N.C. State working population as
defined by U.S. Census data.
(B) The managers' and supervisors' responsibilities
shall include:
(i) assisting in the development and implementation
of the EEO plan and program and establishing program objectives;
(ii) maintaining a diverse workforce for the
department, division, work unit, or section;
(iii) assisting the EEO officer in periodic
evaluations to determine the effectiveness of the EEO program; and
(iv) providing a work environment and management practices
which support equal opportunity in all terms and conditions of employment.
(C) The EEO Officer(s) responsibilities shall include:
(i) the interpreting and applying of Federal laws,
state statutes, policy regulations and guidelines related to discrimination in
employment and equal opportunity;
(ii) reviewing hiring recommendations for compliance
with EEO program objectives prior to the final agency or university hiring
decision;
(iii) maintaining and analyzing workforce utilization
data for development of the equal employment plan and program in conjunction
with management;
(iv) maintaining and analyzing data on employment
practices to monitor and evaluate the effectiveness of the EEO program and to make
recommendations on improvements;
(v) advising management of the program's impact and
effectiveness on workforce demographics at all occupational levels;
(vi) providing or coordinating EEO training for
management and employees;
(vii) providing confidential counseling or
consultation for management and employees in matters involving EEO concerns or
complaints alleging discrimination (formally, informally and within agency or
university guidelines);
(viii) establishing and maintaining effective working
relations with groups concerned with equal employment opportunity;
(ix) coordinating programs (internally or in
cooperation with State Personnel) to achieve program objectives and to provide
for management and employee input and assistance in program development and
implementation; and
(x) presenting information on the EEO plan and
program to management and employees on a regular basis.
(D) The EEO Committee responsibilities shall include:
(i) serving as a communication link between
managers and employees and the EEO staff on aspects of the EEO plan and program;
(ii) reviewing and evaluating the equal employment
opportunity plan and program;
(iii) reviewing workforce representation data in each
occupational category;
(iv) surveying the organizational climate and employee
attitudes and evaluating the resultant data;
(v) meeting with the agency head or university
chancellor in conjunction with the EEO Officer to discuss EEO programs, report
on the employees' concerns, and recommend changes or additions to the EEO
policy, plan, or program; and
(vi) identifying recruitment resources and other
activities designed to strengthen the EEO program; meeting as a committee at
least quarterly.
(3) The dissemination procedures. These
procedures shall include methods for communicating the commitment, intent, and
provisions of the EEO plan and program to employees and the general public.
(4) The workforce analysis. This analysis
shall be used to examine the representation of each demographic group within
each occupational category using one of the following three bases for comparison:
(A) the N.C. working populations (ages 18-64) as
established by the U.S. Census. The statewide N.C. working population shall be
used for the officials and administrators, management related and professional
occupational categories; and the geographical recruiting area working
population shall be used for the other occupational categories;
(B) the two factor analysis as defined by the Office of
Federal Contract Compliance Programs (OFCCP) regulations; or
(C) the N.C. Occupational specific civilian labor force
and N.C. working population (18-64) compromise standard, as established by the
State Personnel Commission. The occupation specific labor force of each
demographic group and the working population by each demographic group shall be
compared to the agency or university workforce. An average of the
underutilization resulting from the comparisons of the two criteria shall be
used to determine the workforce underutilitzation by occupational category for
each demographic group. When calculating the underutilization resulting from
the occupation specific/working population comparison, the statewide working
population and the statewide occupational specific category compromise numbers
shall be used for analyzing the officials and administrators, management
related and the professional occupational categories. When calculating the
underutilization resulting from the occupation specific/working population
comparison, the working population in the local geographical recruiting area
and the occupation specific category compromise numbers in the local
geographical recruiting area may be used for analyzing the other occupational
categories. Only one basis or criteria for comparison shall be selected for use
by an agency head or university chancellor. The analysis shall identify each
occupational category in which groups are underutilized, (defined as having
fewer employees in a demographic group in a particular occupational category
than would be expected based on the selected basis or criteria for comparison).
The analysis shall also assess the agency's or university's workforce needs and
capability for addressing the identified underutilization;
(5) The program objectives. These objectives
shall establish strategies targeted at eliminating or reducing any
underutilization identified in each occupational category;
(6) The program activities and strategies. These
activities and strategies shall be implemented to accomplish program
objectives. These strategies shall include the following:
(A) recruitment procedures to attract a diverse pool of
applicants to each occupational category;
(B) disciplinary process designed to provide equitable
treatment for all employees in accordance with the State's discipline rules;
(C) selection procedures designed to ensure that all of
the steps in the process are nondiscriminatory and job related;
(D) hiring process designed to include consistent
information for new hires regarding employment conditions (e.g., type of
appointment or salary);
(E) promotion procedures designed to enhance upward
mobility and fully utilize the skills of the existing workforce;
(F) training procedures designed to enhance employee
development and advancement opportunities;
(G) compensation and benefits analysis procedures
designed to review benefits, monitor salaries, analyze practices in order to
determine trends, and ensure that all employees receive compensation and
benefits without discrimination;
(H) performance appraisal designed to hold managers and
supervisors accountable for the progress of the agency's or university's EEO program,
and to establish, maintain, and apply employee performance standards that are
free from bias;
(I) transfer or separation analysis designed to
identify trends and to measure impact on underutilized groups;
(J) grievance procedures to ensure fair and equitable
review of complaints in accordance with agency or university procedures and
State rules on grievance; and
(K) a process to enroll managers and supervisors in the
Equal Employment Opportunity Institute (EEOI), an EEO educational and diversity
training program, as defined by G.S. 126-16.1;
(7) An evaluation mechanism. This evaluation
mechanism shall be designed to assess overall effectiveness of the equal
employment opportunity program and to determine the achievement of agency or
university EEO objectives as identified in the EEO plan and program;
(8) A reporting mechanism. This reporting
mechanism shall be designed to provide agency or university management, on a
regular basis throughout the year, with data on the various program activities,
workforce trends, and progress towards achievement of program objectives;
(9) Procedures to prevent and eliminate
harassment. These procedures shall be designed to create an environment that
is fair to all employees without regard to race, sex, age, national origin,
color, creed, religion, genetic information, or disability, as defined by G.S.
168A-3, or the American with Disabilities Act, as amended.
(10) Reduction-in-force procedures. These
procedures shall be designed to analyze layoff decisions and to determine their
actual or potential adverse impact on underutilized groups; and
(11) Procedures for monitoring. These procedures
shall establish a data management system for maintaining and analyzing data on
transactions regarding agency or university trends in compensation, promotion,
selection, recruitment, training, separations, performance appraisals, and all other
terms and conditions of employment.
(d) Each state agency head and university chancellor shall
designate an official at the deputy secretary, assistant secretary,
vice-chancellor or assistant vice-chancellor level or an official with a direct
reporting relationship to the agency head or chancellor, to assume
responsibility for the operation and implementation of their equal opportunity
plan and program.
History Note: Authority G.S. 95-28.1A; 126-4(10);
126-16; 126-19; P.L. 110-233; 122 Stat. 881;
Eff. October 1, 1977;
Amended Eff. May 1, 2012; August 1, 2002; December 2,
1995; November 1, 1988; November 1, 1987; October 1, 1984.
25 NCAC 01L .0105 PROGRAM PLAN REVIEW
History Note: Authority G.S. 126‑4(10); 126‑16;
Eff. October 1, 1977;
Amended Eff. November 1, 1988; November 1, 1987; October
1, 1984; October 1, 1980;
Repealed Eff. December 2, 1995.
25 NCAC 01L .0106 REPORTS
History Note: Authority G.S. 126‑4; 126‑16;
Eff. October 1, 1978;
Repealed Eff. December 2, 1995.
SECTION .0200 ‑ ACQUIRED IMMUNE DEFICIENCY SYNDROME
(AIDS) IN THE WORKPLACE
25 NCAC 01L .0201 EDUCATION AND TRAINING
History Note: Authority G.S. 126‑4;
Eff. November 1, 1990;
Amended Eff. March 1, 1992;
Recodified to 25 NCAC 01N .0301 Eff. December 29, 2003.
25 NCAC 01L .0202 BASIC EDUCATION AND TRAINING COMPONENT
History Note: Authority G.S. 126‑4;
Eff. November 1, 1990;
Amended Eff. March 1, 1992; May 1, 1991;
Recodified to 25 NCAC 01N .0302 Eff. December 29, 2003.
25 NCAC 01L .0203 ADVANCED EDUCATION AND TRAINING
COMPONENT
History Note: Authority G.S. 126‑4;
Eff. November 1, 1990;
Amended Eff. June 1, 1992; March 1, 1992; May 1, 1991;
Recodified to 25 NCAC 01N .0303 Eff. December 29, 2003.
25 NCAC 01L .0204 ANTI‑DISCRIMINATION
History Note: Authority G.S. 126‑4; 130A‑148C(i);
168A‑3(9);
Eff. November 1, 1990;
Recodified to 25 NCAC 01N .0304 Eff. December 29, 2003.
25 NCAC 01L .0205 TESTING AND EXAMINATION
History Note: Authority G.S. 126‑4;
Eff. November 1, 1990;
Recodified to 25 NCAC 01N .0305 Eff. December 29, 2003.
25 NCAC 01L .0206 CONFIDENTIALITY
History Note: Authority G.S. 126‑4;
Eff. November 1, 1990;
Recodified to 25 NCAC 01N .0306 Eff. December 29, 2003.
25 NCAC 01L .0207 COMPLAINTS AND DISCIPLINE
History Note: Authority G.S. 126‑4;
Eff. November 1, 1990;
Recodified to 25 NCAC 01N .0307 Eff. December 29, 2003.
SECTION .0300 ‑ EQUAL EMPLOYMENT OPPORTUNITY INSTITUTE
25 NCAC 01L .0301 RESERVED FOR FUTURE CODIFICATION
25 NCAC 01L .0302 PARTICIPATION AND PURPOSE
Supervisors and managers hired, promoted or appointed on or
after July 1, 1991 shall participate in the EEOI. Supervisors and managers
appointed before July 1, 1991 are encouraged to participate in the EEOI. Agencies,
departments and universities shall not be authorized to conduct or contract for
substitute training to replace EEOI. The purpose of the EEOI is to:
(1) address and discuss the history and evolution of
equal employment opportunity concepts and principles;
(2) assist managers and supervisors in incorporating
their equal employment opportunity responsibilities with other management
responsibilities;
(3) expose managers and supervisors to workplace equity
and fairness issues; and
(4) review and discuss accepted management practices
for valuing and managing diversity in the workplace.
History Note: Authority G.S. 126‑16.1;
Eff. January 1, 1992;
Amended Eff. November 1, 2004.
25 NCAC 01L .0303 RESPONSIBILITIES: AGENCIES
(a) It is the responsibility of each state agency,
department, and university (hereafter named agency) to enroll each supervisor
or manager appointed on or after July 1, 1991 in the EEOI. The enrollment
shall be within one year of initial appointment.
(b) Each agency shall be responsible for providing its
prorata share of the cost for supplies and resource materials.
(c) Agencies shall be responsible for verifying candidate
eligibility reports.
(d) Agencies may enroll incumbent managers and supervisors
to participate in the EEOI when space is available.
(e) Agencies may incorporate in their new employee
orientation program a module of instruction designed to familiarize new
employees with the agency's commitment to equal employment opportunity.
History Note: Authority G.S. 126‑16.1;
Eff. January 1, 1992;
Amended Eff. November 1, 2004.
25 ncac 01L .0304 responsibilities: Managers and
supervisors
Managers and supervisors shall attend and complete the EEOI
in the prescribed time frame.
History Note: Authority G.S. 126-16.1;
Eff. January 1, 1992;
Amended Eff. January 1, 2005.
25 NCAC 01L .0305 RESPONSIBILITIES: OFFICE OF STATE
PERSONNEL
History Note: Authority G.S. 126‑16.1;
Eff. January 1, 1992;
Repealed Eff. January 1, 2005.
25 NCAC 01L .0306 ADMINISTRATION: DEFINITIONS
(a) "Supervisory positions" are
defined as positions in which the majority of the work performed is directing
the work of other positions. These employees have the authority to assign work
and to evaluate work; to hire employees; to discipline or dismiss employees; or
have significant input into such actions.
(b) "Managerial positions" are
defined as positions which manage established divisions or subdivisions of a
department, agency or university. These employees direct the work of one or
more supervisors and have the authority to hire, reward, discipline, or
discharge employees. These employees may also provide suggestions for changes
in policy to senior executives with policy‑making authority.
(c) "Executive managerial"
positions are defined as policy making positions. Employees in these positions
are agency/department heads, university chancellors, deputies, assistants, vice‑chancellors,
and other policy makers. The employees in executive managerial positions are
usually appointed or elected. For the purposes of this policy, the definition
of supervisors, managers, and executives also includes the setting of
performance expectations, conducting performance appraisal conferences and
evaluating performance.
(d) "Incumbent Executives, Managers and
Supervisors" are defined as executive managers and supervisors hired or
appointed into positions prior to July 1, 1991.
(e) "EEOI Candidates" are defined
as:
(1) Managers and supervisors
hired on or after July 1, 1991 and who may or may not have served in a
management role in state government.
(2) Incumbent executives,
managers and supervisors hired or appointed into current positions prior to
July 1, 1991.
(3) Incumbent executives,
managers and supervisors promoted/appointed to a different management position
on or after July 1, 1991.
(4) Executive level managers who
are hired or appointed with or without executive level experience in state
government on or after July 1, 1991.
(f) "Training Level 1" is defined
as the full EEOI Training designed for those managers and supervisors
identified in Subparagraph (e)(1) of this Rule. Also, management level
employees as identified in Subparagraphs (e)(2) and (e)(3) of this Rule may
participate on a space availability basis.
(g) "Training Level 2" is defined
as an abbreviated course designed for executive level managers as identified in
Subparagraph (e)(4) of this Rule. Also, executive level managers as identified
in Subparagraphs (e)(2) and (e)(3) of this Rule may participate on a space
availability basis.
(h) "Enroll," for the purposes of
this policy, shall be defined as the act of attending and completing the EEOI.
History Note: Authority G.S. 126‑16.1;
Eff. January 1, 1992.
25 NCAC 01L .0307 COURSE SCHEDULING AND SITE SELECTIONS
History Note: Authority G.S. 126‑16.1;
Eff. January 1, 1992;
Repealed Eff. November 1, 2004.
section .0400 – persons with a disability
25 NCAC 01L .0401 SPECIAL PROVISIONS
RELATIVE TO PERSONS WITH A DISABILITY
(a) The definitions in G.S. 168A-3 apply to
this Rule.
(b) Equal employment
opportunity for persons with a disability includes the making of a reasonable
accommodation to the known physical limitations of a qualified applicant or
employee who would be able to perform the essential duties of the job if such
accommodation is made. This may include:
(1)
making facilities used by employees accessible to
and usable by such person;
(2)
job restructuring (reassigning non‑essential
duties or using part‑time or modified work schedules);
(3)
acquisition or modification of equipment or
devices;
(4)
provision of readers or interpreters; or other
similar actions.
Agencies shall make such adjustments for the known
limitations of otherwise qualified applicants and employees with a disability
unless it can be demonstrated that a particular adjustment or alteration would
impose an undue hardship on the operation of the agency.
(c)
Whether an accommodation is reasonable must depend on the facts in each case.
Factors to be considered in determining this include:
(1)
the nature and cost of the accommodation needed;
(2)
the type of the agency's operation, including the
composition and structure of its work force; and
(3)
the overall size of the agency or particular
program involved, with respect to number of employees, number and type of
facilities, and size of budget.
(d) Bona Fide Occupational Qualifications:
(1) Age, sex or physical
requirements may be considered if they constitute a bona fide occupational
qualification necessary for job performance in the normal operations of the
agency. Whether such a requirement is a bona fide occupational qualification
shall depend on the facts in each case. This exemption shall be construed very
narrowly and the agency shall have the burden of proving the exemption is
justified.
(2) Physical fitness
requirements based upon preemployment physical examinations relating to minimum
standards for employment may be a reasonable employment factor, provided that
such standards are reasonably necessary for the specific work to be performed
and are uniformly and equally applied to all applicants for the particular job
category, regardless of age or sex.
(3) A differentiation may be
based on a physical examination in job situations which necessitate stringent
physical requirements due to inherent occupational factors such as the safety
of the individual employees or of other persons in their charge, or those
occupations which by nature are particularly hazardous. Job classifications
which require rapid reflexes or a high degree of speed, coordination, dexterity
and endurance would fall in this category.
(4) To establish age, sex or
physical requirements as a bona fide occupational qualification, it shall be
necessary to submit a recommendation to the Office of State Personnel setting
forth all facts and justification as to why the requirement should be
considered as an employment factor in each of the classifications in question.
(e) Special Provisions Relative to
Communicable and Infectious Diseases:
(1) Persons with communicable or
infectious disease, including Acquired Immune Deficiency Syndrome (AIDS), are
persons with a disability if the disease results in an impairment which
substantially limits one or more major life activities. All of the statutory
provisions relative to persons with a disability are applicable to persons with
communicable and infectious diseases, including the requirements for a reasonable
accommodation to the known limitations of an otherwise qualified applicant or
employee.
(2) It is not discriminatory
action to fail to hire, transfer, or promote, or to discharge a person with a
disability because the person has a communicable disease which would disqualify
a person without a disability from similar employment. However, such action
may be taken on that basis only when it has been determined necessary to
prevent the spread of the communicable or infectious disease. There must be
documentation of consultation with private physicians and public health
officials in arriving at the determination. Concern for other employees who
may fear working with the infected co‑worker must never be the basis for
the action, in the absence of a medically documented health hazard to other
persons. There is no evidence that employing a person with AIDS would present
a health hazard to other persons in the usual workplace.
History Note: Authority G.S. 126‑4; 126‑5(c)(1)‑(4);
126‑16; 126‑36; 168A‑5(b)(3); P.L. 92‑261;
Eff. October
1, 2004.
